Since July 1, thanks to a ballot initiative that voters in Maryland overwhelmingly approved last November, state law allow adults 21 or older to publicly possess up to 1.5 ounces of marijuana. In anticipation of this development, Maryland lawmakers passed last month HB 1071, which will prohibit the police, also from July 1, from considering the smell of cannabis as sufficient reason to stop or search pedestrians or cars.
Virginia promulgated a similar law in 2020, and lawmakers in other states, including Missouri And Illinois, have proposed the same fundamental reform. The underlying reasoning is simple: once it is legal to possess small amounts of cannabis, an odor indicating the presence of this substance is no longer evidence of a crime. It therefore cannot, on its own, provide a reasonable suspicion of a stop or probable cause for a search. Yet the Maryland bill, which the Democratic-controlled legislature approved by a 101-36 vote in the House and a 27-20 vote in the Senate, recently became law without Governor Wes Moore’s signature, suggesting he had reservations about it.
Moore, a Democrat who took office this year, served on the board from Chicago-based cannabis company Green Thumb Industries through March 2022 and no surprises supported legalization when he ran for governor. He refuses to explain his reasons for refusing to sign HB 1071, which, in addition to search and seizure provisions, reduces the maximum civil fine for a public pot smoker from $250 to $50. But the legislative debate on the bill is a window into the perilous police practice of using marijuana possession as a pretext to investigate other crimes and as an excuse to seize property.
Under HB 1071, “a law enforcement officer may not initiate a stop or search of a person, motor vehicle, or vessel based solely” on “the ‘smell of burnt or unburned cannabis’, suspected possession of quantities for personal use, or ‘the presence of cash or currency in the vicinity of the cannabis with no other sign of intent to distribute’. In the latter situation, of course, the police would seize the money with the cannabis, using it to increase your budget under civil forfeiture laws, which helps explain why the cops are so eager to follow their noses.
If an officer is investigating a person suspected of driving while impaired by marijuana, says HB 1071, they can only search parts of the car that are “readily accessible” to the driver or “reasonably likely to contain evidence” of this offence. Any evidence obtained in violation of the new rules is “inadmissible in any trial, hearing or other proceeding”. In particular, this includes “evidence discovered or obtained with consent”, which is more than a legal fiction when people are assaulted by armed agents of the state with the power to informally punish uncooperative drivers.
Under previous Maryland law, possession of 10 grams or less of marijuana was a civil offense punishable by a $100 fine. In 2017, the Maryland Court of Appeals (now the Supreme Court of Maryland) nonetheless held that “a law enforcement officer has probable cause to search a vehicle” when he “detects an odor of marijuana emanating from the vehicle, since marijuana in any quantity remains contraband, notwithstanding the decriminalization of possession less than ten grams”.
However, three years later, the court ruled that “the mere smell of marijuana alone is not indicative of the amount of marijuana that may be in a person’s possession and does not provide a law enforcement officer with the probable cause required to arrest a person and conduct a warrantless search of that person incident to the arrest.” In 2022, on the other hand, the court said “the smell of marijuana” do provide “reasonable suspicion of criminal activity sufficient to conduct a brief investigative detention”, overruling a lower court’s decision contrary decision.
HB 1071 clarifies this puzzling situation in light of legalization: it says that the smell of marijuana alone is not enough to justify a warrantless search. Or a stop. Although the logic of this reform seems clear, opponents of the bill argue that such a categorical rule goes too far. Cops wanted to continue stopping and searching people for marijuana even after they were legally allowed to possess it.
The Maryland Association of Chiefs of Police and the Maryland Sheriffs Association noted that certain marijuana-related conduct will remain illegal in Maryland, including possession by persons under 21, possession of more than 1.5 ounces, driving under the influence, and distribution without a license. From the smell of the still could be evidence of a felony, they said, “Using the smell of cannabis alone as a reason to briefly detain a person or search a vehicle will not violate the Fourth Amendment and would be reasonable.”
These police organizations cited a December 2022 report in which then-Maryland Attorney General Brian Frosh said “the smell of cannabis will likely still allow a police officer to briefly detain the person to investigate their possession of a criminal amount of cannabis.” Frosh also thought the Supreme Court of Maryland would likely conclude that “the smell of cannabis emanating from a vehicle will still warrant a police officer’s search of that vehicle” even after low-level possession is legalized.
“We realize this may seem counter-intuitive,” Frosh wrote. But “to conduct a search of a vehicle under the Constitution, an officer only needs probable cause to believe that the vehicle contains evidence of a crime, not that a person in the vehicle has committed or is committing a crime”.
You might think that when an officer pulls someone over, smells marijuana, and searches the car, they’re acting on the assumption that the driver has committed a crime. But according to Frosh, this cop just thinks he’ll find “evidence of a crime,” not necessarily a crime the driver (or a passenger) committed. If so, who exactly is the suspect?
In any case, probable cause requires “a reasonable probability that contraband or evidence of a crime will be found in a particular location.” In this context, this probability surely depends on the probability that the marijuana in a car exceeds 1.5 ounces. After legalization, what percentage of drivers who transport marijuana can we expect to have more than the law allows? If this percentage is low, it is difficult to see how a search can be justified on the sole basis of the presumed presence of cannabis.
The Colorado Supreme Court rejected this premise in 2019, when it ruled that an “alert” by a drug-sniffing dog trained to detect marijuana as well as other drugs does not provide probable cause for a search. Courts in other states where cannabis is legal have reached similar findingsforcing the police to recycle or replace their canine narcissus. And in 2015, after Massachusetts decriminalized marijuana possession but before it legalized recreational use, the state Supreme Court ruled that the smell of burning marijuana alone cannot justify a traffic stop.
Rather than wait to see where the Maryland Supreme Court might rule on these issues, state lawmakers have made a policy choice that obviates the need for further litigation and ruling. And in making that choice, they eliminated one of the lots of excuses that the police use to harass people who pose no threat to public safety.
This particular excuse can be stretched beyond credibility. In 2012, for example, The Virginia Pilot reported that Chesapeake officers “stopped cars on the grounds that they smelled of marijuana while navigating local roads”. One of those cops explain how this technique would have worked: “We drive our patrol car with the vents on, drawing air from the outside in, straight into our faces.”
In 2011, New Jersey cops impounded a BMW based on an alleged “strong smell of raw marijuana” and tore it apart in three weeks with the help of drug-sniffing dogs, causing over $12,000 in damage. They did not find the marijuana they allegedly smelled or any other contraband.
Two years later, after stopping a car for disputed reasons, an Idaho state trooper opened the trunk with the driver’s not entirely voluntary consent and, according to the result trial, “claimed he could smell marijuana”, despite “the strong gusts of wind and precipitation that day”. The search of the car that followed revealed nothing illegal. The driver’s lawyer said The Denver Post his client “does not use marijuana and never has”.
In 2018, the Supreme Court of Kansas confirmed a warrantless apartment search based on a cop’s claim that she “smelled a strong odor of raw marijuana emanating from the apartment” while standing outside the front door. What police eventually discovered was 25 grams (less than an ounce) of marijuana, which was inside a sealed plastic container, inside a locked safe, at the interior of a bedroom closet approximately 30 feet from where the officer was standing. Cops also found “a small amount of marijuana on a partially burned cigarillo in the living room,” which could have smelled burned marijuana, not “raw marijuana”.
That same year, a team from Louisville, Kentucky, SWAT terrorized an innocent family during an unsuccessful home invasion. The raid was based in part on “a strong smell of fresh marijuana” that a detective claimed to have noticed while standing on the porch.
I could go on, but you get the idea. The cops, helped by their not so loyal dogscommonly use the real or imagined smell of marijuana to justify outrageous invasions, including vain searches, Highway And airport flight and roadside sexual assault. The smell of pot even figured in the 2016 death of Minnesota motorist Philando Castile, who was shot by a cop who later said the smell scared him.
It’s bad enough that such things happen in jurisdictions where marijuana remains illegal. It is incomprehensible that they continue after a state has repealed this prohibition.